DEFENDANT’S, PRESSLER & PRESSLER, LLP, MEMORANDUM OF … · DEFENDANT’S, PRESSLER & PRESSLER,...

P&P File # P151618

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY (Newark) =============================== : : NATALIE A. WILLIAMS et al, : 2:11-cv-07296 (KSH)(PS) :

Plaintiff : :

vs. : :

PRESSSLER & PRESSLER, LLP : :

Defendant : : =============================== :

DEFENDANT’S, PRESSLER & PRESSLER, LLP,

MEMORANDUM OF LAW IN OPPOSITION TO

PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION

Michael J. Peters, Esquire Mitchell L. Williamson, Esquire On the Brief Dated: February 25, 2013

_____s/Mitchell L. Williamson__ Mitchell L. Williamson, Esq. Attorneys for Defendant, Pressler and Pressler, L.L.P. Pressler and Pressler, L.L.P. 7 Entin Road Parsippany, New Jersey 07054 Telephone: (973) 753-5100 / Facsimile: (973) 753-5353 [email protected]

Case 2:11-cv-07296-KSH-PS Document 38 Filed 02/25/13 of 28 PageID: 347

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TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..............................................................................................iii INTRODUCTION................................................................................................................1 I. RESPONSE TO PLAINTIFFS’ NATURE OF THE CASE .......................................1 II. RESPONSE TO PLAINTIFFS’ PROCEDURAL HISTORY ...................................1 III. RESPONSE TO PLAINTIFFS’ EVIDENTIAL MATERIALS ..............................2 A. Response to Plaintiffs’ argument that P&P is a “debt collector.” ..................................2 B. Response to Plaintiffs’ argument that P&P filed collection complaints and Plaintiffs answered them. .....................................................................3 C. Response to Plaintiffs’ argument that consumer obligations were at issue ............................................................................................................................3 D. Response to Plaintiffs’ argument that each Plaintiff was sent a Settlement Letter ............................................................................................................3 E. Response to New Century’s credit reporting practices ..................................................4 F. Response to P&P’s purported “Proof that the Debt has been Paid.” ..............................5 G. Response to P&P’s intended use of the Post-suit, Pre-judgment Settlement Letter ............................................................................................................5 H. Response to Plaintiffs’ Expert, Evan Hendricks ............................................................7 I. Response to Class Size ....................................................................................................12 J. Response to P&P’s Net Worth ........................................................................................13 K. Response to Class Representatives ................................................................................13 L. Response to Class Counsel .............................................................................................13 IV. RESPONSE TO MERITS ...........................................................................................13 A. Response to the Purpose of the FDCPA ........................................................................14


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B. Response to Cause of Action under the FDCPA............................................................14 V. RESPONSE TO CLASS DEFINITIONS, CLASS COUNSEL AND NOTICE .......15 A. Response to Class Definition .........................................................................................15 B. Response to Class Claims Definition .............................................................................15 C. Response to Proposed Class Counsel .............................................................................15 D. Response to Notice to the Class .....................................................................................16 VI. RESPONSE TO LEGAL ARGUMENT THAT THE RECORD ESTABLISHES NUMEROSITY, COMMONALITY, TYPICALITY ADEQUACY, SUPERIORITY AND PREDOMINANCE; THEREFORE, CERTIFICATION OF A “B3” CLASS IS WARRANTED .....................................16 A. Response to Elements of Rule 23(a) are satisfied ..........................................................17 1. Response to Numerosity ...............................................................................................17 2. Response to Commonality ............................................................................................17 3. Response to Typicality ..................................................................................................18 4. Response to Adequacy ..................................................................................................18 B. Response to the Class satisfies Rule 23(b)(3): Predominance and Superiority ............22 CONCLUSION ....................................................................................................................22


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TABLE OF AUTHORITIES

Cases Page Bass v. Stolper, Koritzinsky, Brewester & Neider, S.C., 111 F.3d 1322 (7th Cir. 1997) ........................................................................................................................14 Berckeley Inv. Group, Ltd. v. Colkitt, 455 F.3d 195 (3d Cir. 2006) .....................................7 Burkhalter Travel Agency v. MacFarms Int’l, Inc., 141 F.R.D. 144 (N.D. Cal. 1991).....................................................................................................................19 Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294 (3d Cir. 2008) .........................................................................................................................12 Carswell v. Borough of Homestead, 381 F.3d 235 (3d Cir. 2004) ........................................7,12 Defazio et al. v. Pressler & Pressler, LLP, et al., 2:10-cv-03602-JLL-CCC .........................21-22 Dotson v. Portfolio Recovery Associates, LLC, 2009 U.S. Dist. LEXIS 46903 (E.D. Pa. 2009).......................................................................................................................18-19 FTC v. Check Investors, Inc., 502 F.3d 159 (3d Cir. 2007) ..................................................13 In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d 305 (3d Cir. 2008) .........................7,16 Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718 (11th Cir. 1987) .....................................19 Koenig v. Benson, 117 F.R.D. 330 (E.D.N.Y. 1987) ............................................................19 Lorandeau v. Capital Collection Serv., 2011 U.S. Dist. LEXIS 101994 (E.D. Pa. 2011) ................................................................................................................................14 Marcus v. BMW of N. America, LLC, 687 F.3d 583 (3d Cir. 2012) ....................................16 Newton v. Savit Collection Agency, 2011 U.S. Dist. LEXIS 146479 (D.N.J. 2011)..........................................................................................................................12 Rogzinski v. NCO Fin. Sys., 2012 U.S. Dist. LEXIS 153984 (E.D. Pa. 2012) .....................14 Saylor v. Lindsley, 456 F.2d 896 (2d Cir. 1972) ...................................................................19 Stair v. Thomas & Cook, 254 F.R.D. 191 (D.N.J. 2008).......................................................16 Thomas v. Cumberland County, 2012 U.S. Dist. LEXIS 124241 (D.N.J. 2012) ..................8-9


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Wahl v. Midland Credit Mgmt., 556 F.3d 643 (7th Cir. 2009) .............................................14-15 Wilson v. Quadramed Corp., 225 F.3d 350 (3d Cir. 2000) ...................................................12 Yentin v. Michaels, Louis & Assocs., 2011 U.S. Dist. LEXIS 104711 (E.D. Pa. 2011).......................................................................................................................14 Rules & Statutes 15 U.S.C. §1681 et seq. (“FCRA”) ........................................................................................11 15 U.S.C. §1681i ....................................................................................................................11 15 U.S.C. §1681i(a)(4)...........................................................................................................5,11 15 U.S.C. §1692 et seq. (“FDCPA”) .....................................................................................passim 15 U.S.C. §1692a(6) ..............................................................................................................2 15 U.S.C. §1692c(b) ..............................................................................................................6 15 U.S.C. §1692e ...................................................................................................................9 Fed. R. Civ. P. 23(b)(3)(B) ....................................................................................................22


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INTRODUCTION Plaintiffs, Natalie A. Williams and Alan J. Setneska, seek certification of their putative class

action complaint alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. §1692

et seq. (“FDCPA”), by the Defendant, Pressler and Pressler, LLP (“P&P”).

P&P submits the instant brief in opposition to Plaintiffs’ Motion for Class Certification. For the

reasons set forth hereinafter, P&P respectfully requests that the Court deny Plaintiffs’ Motion.

I. RESPONSE TO PLAINTIFFS’ NATURE OF THE CASE The Plaintiffs allege that P&P violated the FDCPA by sending a letter (the “Settlement Letter”)

to a putative class of individuals that includes the sentence, “Proof that the debt has been paid

will be sent to the court and a copy to you so that you can advise the credit bureau” (the

“Sentence”). Plaintiffs alleged that this is a false, deceptive, or misleading statement and, as a

result, P&P violated the FDCPA. They do not address the bulk of the letter which mainly

offered each debtor a substantial discount on the balance due.

P&P does not dispute that both Plaintiffs were sent a copy of the Settlement Letter which

contained, inter alia, the Sentence.

P&P also submits the Certification of Michael J. Peters, Esq. (“Peters Cert.”) and Gina M. Lo

Bue, Esq. (“Lo Bue Cert.”) to supplement the factual record for the instant motion.

II. RESPONSE TO PLAINTIFFS’ PROCEDURAL HISTORY For the purposes of this motion, P&P adopts Plaintiffs’ procedural history set forth on page 2 of

Plaintiffs’ Brief in Support of Motion for Class Certification (“Plaintiffs’ Class Brief”). P&P

only adds the following:


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The Court issued an Order on Informal Application & Fifth Amended Pretrial Scheduling Order

on February 1, 2013. (ECF Doc. 37). Same amended the filing deadlines with respect to the

instant motion. P&P was directed to file opposition no later than February 25, 2013. Plaintiffs

were directed to file a reply no later than March 11, 2013. The return date of the motion is

currently March 18, 2013.

III. RESPONSE TO PLAINTIFFS’ EVIDENTIAL MATERIALS A. Response to Plaintiffs’ argument that P&P is a “debt collector.” Solely for the purposes of this motion, P&P does not contest that it is a “debt collector” as

defined by 15 U.S.C. §1692a(6) with respect to the “debts” at issue in each Plaintiffs’ underlying

collection action.

P&P would like to clarify one point with respect to Mr. Ralph Gulko’s testimony referred to by

Plaintiffs on page 4 of their brief. Plaintiffs point out that Mr. Gulko’s review of a state court

complaint “can be from less than a minute to several minutes.” Plaintiffs’ Class Brief, pg. 4.

That statement appears to rely upon the following exchange:

Q. Mr. Gulko, are you able to state the amount of time you spend reviewing a complaint on behalf of New Century?

A. It depends on the particular account. Q. Can you give an approximation of sort of the least amount

of time and the most amount of time you generally spend? A. The least amount of time would be less than a minute. The

most amount of time could be two, three, four, five minutes.

[See Declaration of Philip D. Stern, Esq. (“Stern Decl.”), Exhibit 9 at 84:15-241]

1 Reference to transcript pages and lines will follow the format: page:line-line or page:line-page:line.


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Based on the context of the question, Mr. Gulko’s statement speaks in an approximation of what

he generally does and is not accounting for the uncommon claim where it may take a longer

period of time for review. Nonetheless, this isolated inquiry into how much time Mr. Gulko

spends reviewing a complaint prior to filing is not an issue before the court in relation to the

instant motion.

P&P also contends that its answer found in a block-quotation on page 5 of Plaintiffs’ Class Brief

is appropriate. P&P is only a “debt collector” under the FDCPA to the extent the FDCPA

applies because a consumer debt is at issue. Until a consumer debt is established, P&P is not a

“debt collector” defined under the FDCPA.

B. Response to Plaintiffs’ argument that P&P filed collection complaints and Plaintiffs answered them. P&P does not contest that the “Williams Collection Complaint” was filed on December 10, 2010

and that Natalie Williams filed an answer thereto on January 7, 2011.

P&P does not contest that the “Setneska Collection Complaint” was filed on June 7, 2011 and

that Alan Setneska filed an answer thereto on September 8, 2011.

C. Response to Plaintiffs’ argument that consumer obligations were at issue. For the purposes of the instant motion, P&P does not contest that either Plaintiff used the

respective accounts at issue in the underlying state court actions for personal purchases.

D. Response to Plaintiffs’ argument that each Plaintiff was sent a Settlement Letter. P&P admits it sent both Plaintiffs the “Settlement Letter” which forms the basis of the instant

complaint. Solely for clarification, the “Settlement Letter” sent to each Plaintiff did not provide


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only the option of “mak[ing] a single payment by a specified date” as set forth in Plaintiffs’

Class Brief on page 7. The “Settlement Letter” also gave the recipient the option of making a

down payment and arrangements on the remaining balance. See Declaration of Alan J. Setneska

(ECF Doc. 31-3), Exhibit C and Declaration of Natalie A. Williams (ECF Doc. 31-2), Exhibit C.

E. Response to New Century’s credit reporting practices. P&P does not contest the arguments of Plaintiffs in this section except for the final two

paragraphs appearing on page 9 of Plaintiffs’ Class Brief.

With respect to the penultimate paragraph in this section, it should be noted that although

Williams and Setneska were sent the Settlement Letters after they filed answers to the state court

action complaints, not every putative class member was sent the “Settlement Letter” after an

answer was filed. See Section III-I, infra.

With respect to the last paragraph of this section, nothing has been provided by Plaintiffs to

support the allegation that the least sophisticated consumer “would conclude that (1) something

about the lawsuit or New Century’s claim was on his or her credit report . . . .” See Plaintiffs’

Class Brief, pg. 9. As will be addressed more significantly below, Plaintiffs own expert report

states that there is only a “general awareness among U.S. consumers” of the credit reporting

system. Stern Decl., Exhibit page 46, ¶ 28. Moreover, Plaintiffs’ expert produces figures that

say only 25% of Americans know what their credit score is and that 43% of Americans (35% of

those with incomes below $35,000) say they have only obtained their credit report in the past

two years. Stern Decl., exhibit page 46, ¶ 29. Based on the fact that (1) so few consumers are

aware of credit reports, (2) so few consumers regularly review their credit reports, and (3) the

majority of consumers have just “general awareness,” it is unlikely that the least sophisticated


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consumer would even recognize the statement in the “Settlement Letter” as being significant –

let alone deducing that the lawsuit or New Century’s claim must be on their credit report. P&P,

therefore, respectfully submits that there is nothing offered by Plaintiffs to support that

statement.

F. Response to P&P’s purported “Proof that the Debt has been Paid.” Plaintiffs section on P&P’s “sketchy” proofs only serves to create confusion on the ultimate

issues. This section serves no purpose to the motion for class certification. There are absolutely

no allegations by Plaintiffs that any of the proofs sent to the Court by P&P to conclude a lawsuit

somehow violates the FDCPA, court rules, or any other rule. As stated below in Section III-G,

the debtor is not required to advise the credit bureaus of anything. The language in the

Settlement Letter is merely a suggestion and if they choose to advise the credit bureaus that a

tradeline is now inaccurate because it has been paid, the credit reporting agencies are required to

consider all documentation sent by the consumer. See 15 U.S.C. §1681i(a)(4).

G. Response to P&P’s intended use of the Post-suit, Pre-judgment Settlement letter. The intent of the “Settlement Letter” is to resolve the pending lawsuit. Plaintiffs’ counsel asked

Steven P. McCabe, Esq., a limited partner of P&P, the following:

I presume that when this letter was approved that there was some intent as to why you identified that option of the plethora of other options that a defendant had of what they could to with the stipulation of dismissal, and that’s why the letter states that you can advise the credit bureau. [Stern Decl., Exhibit 27, 37:1-6.]

Mr. McCabe responded, in full, that:

If I can generally comment on the structure of the letter, it contains an offer. It contains the words “significant savings,” and it


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specifically gives precise figures, 80 percent. It gives the amount of the savings in the Setneska letter, $3,099.69. It is the intent of the letter to offer incentives to settlement. We believe that it is always of interest to debtors that they pay the least amount of money to resolve a claim against them and that they at the end of the day always have their credit rating be as good as it can be under the circumstances. So this is one of the options or incentives given. We don’t expect people to settle a case for no reason. We expect people to act in their own best interest, so we suggest to them that our client has these incentives for them, pay less money and report it to the credit bureau. [Stern Decl., Exhibit 27, 37:7-24 (emphasis added).]

Mr. McCabe was also asked if “[o]ne of the incentives from settling would be sending the

stipulation of dismissal to the credit bureau?” Stern Decl., Exhibit 27, 38:4-6. He responded that

the “exact words” in the Settlement Letter were “so that you can” which “suggest[s] to [a debtor]

that that is an option.” Stern Decl., Exhibit 27, 38:7-9. While this may have been an incentive

offered, the true intention of the letter was to resolve the pending lawsuit and save the consumer

money. There is no language in the letter advising a consumer that they are required to speak to

or send anything to the credit bureaus.

With respect to the criteria that did not allow Settlement Letters to be sent to represented

consumers, it is important to note that this function prohibits P&P’s systems from sending a

communication to a represented consumer in violation of the FDCPA. See e.g., 15 U.S.C.

§1692c(b). Additionally, sending the Settlement Letter can open a channel of communication

with an unresponsive debtor whereas effecting communication with a debtor who has an attorney

is typically not an issue since the debtor recognizes he/she has to deal with the case – hence,


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obtaining an attorney for representation. Moreover, typically attorneys have no problem or

apprehension in speaking with each other regarding a case.

As discussed in more detail below, the Settlement Letter was not required to be sent after there

had been service of process. See Section III-I, infra.

H. Response to Plaintiffs’ Expert, Evan Hendricks. Plaintiffs’ Expert’s Declaration should be stricken because it offers improper net opinions and legal conclusions. “Expert opinion with respect to class certification, like any matter relevant to a Rule 23

requirement, calls for rigorous analysis.” In re Hydrogen Peroxide Antitrust Litigation, 552 F.3d

305, 323 (3d Cir. 2008)(citation omitted). “It follows that opinion testimony should not be

uncritically accepted as establishing a Rule 23 requirement merely because the court holds the

testimony should not be excluded, under Daubert or for any other reason.” Id. at 323 (citation

omitted and emphasis in original).

Plaintiffs offer Mr. Hendricks as an expert in the “field of consumer credit reporting.” Plaintiffs’

Class Brief, pg. 15. While P&P does not challenge Mr. Hendricks’ credentials on credit

reporting, he has set forth no basis upon which he can opine on the FDCPA. Mr. Hendricks

provides several legal conclusions regarding the FDCPA which are impermissible. See Carswell

v. Borough of Homestead, 381 F.3d 235, 243-44 (3d Cir. 2004)(question of law is to be

addressed by the court as a matter of law and not by expert opinion); Berckeley Inv. Group, Ltd.

v. Colkitt, 455 F.3d 195, 216-17 (3d Cir. 2006)(expert witness prohibited from rendering a legal

opinion). Additionally, Mr. Hendricks only provides impermissible “net opinions” based on bare

conclusions. In New Jersey, “an ‘expert’s bare conclusions unsupported by factual evidence’ is


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an inadmissible net opinion.” Thomas v. Cumberland County, 2012 U.S. Dist. LEXIS 124241,

*8 (D.N.J. 2012)(citation omitted). The “net opinion” rules “is merely a restatement of the

‘well-settled principle that an expert’s bare conclusions are not admissible under the fit

requirement of Rule 702.’” Id. at *8 (citation omitted).

Admissibility of expert testimony is examined in light of three factors: “the qualifications of the

expert, the reliability of his or her methodology and the application of that methodology, and

whether the testimony fits the matters at issue in the case.” Thomas, supra, 2012 U.S. Dist.

LEXIS at *9-10. There are also eight factors the Court considers to determine “whether a

particular methodology is reliable.” Id. at *10. Those factors include:

(1) whether a method consists of a testable hypothesis; (2) whether the method has been subject to peer review; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique’s operation; (5) whether the method is generally accepted; (6) the relationship of the technique to methods which have been established to be reliable; (7) the qualifications of the expert witness testifying based on the methodology; and (8) the non-judicial uses to which the method has been put. [Id. at *10-11 (citation omitted).]

Specifically, Mr. Hendricks offers the following paragraphs in his declaration which are

impermissible legal conclusions/net opinions.

3. Defendant made false representations and used deceptive means when it advised Plaintiffs in its collection letter, “Proof that the debt has been paid will be sent to the court and copy to you so that you can advise the credit bureau.” 4. Defendant’s representations were false and its means were deceptive because it gave Plaintiffs and similarly situated consumers the false impression that providing the letter or communicating its contents to credit bureaus would improve their credit report/creditworthiness. This declaration will explain why Defendant’s statements concerning credit bureaus are false and deceptive.


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12. Defendant’s letter makes the false representation that providing the letter or communicating its contents to credit bureaus would improve the Plaintiffs’ credit reports/creditworthiness by somehow convincing the credit bureaus to improve the status the [sic] debt at issue. The representation is false and deceptive in part because it is in contravention as to how the credit reporting system actually works. 31. Defendants’ letter has the strong potential to exploit consumers’ general awareness of the role that credit bureaus play in impacting their creditworthiness, while at the same time taking advantage of the fact that many consumers don’t know the details of “who does what” in the credit reporting industry. 32. Thus, it was reasonable for consumers who received Defendant’s letters to be deceived into believing the letters would somehow help them with a CRA. [Stern Decl., Exhibit 42-29.]

Plaintiffs allege a violation of section 1692e of the FDCPA which prohibits the usage of “any

false, deceptive, or misleading representation or means in connection with the collection of any

debt.” 15 U.S.C. §1692e. Mr. Hendricks’ Declaration implicitly draws the legal conclusion that

the FDCPA was violated because his opinions are crammed with the words “false

representation,” “false and deceptive” and “deceived” which are all relevant to a legal

determination under §1692e.

Moreover, Mr. Hendricks identifies the materials he reviewed as: the sources cited in his

declaration, the amended complaint with exhibits, and the Affidavits of Marko Galic and Ralph

Gulko. Stern Decl., Exhibit 47, ¶ 33. None of the materials Mr. Hendricks’ has reviewed allow

him to make a generalized statement that a consumer would be deceived into believing that the

“Settlement Letter” would help them with a credit reporting agency. Furthermore, he has not

provided anything to support that the method he used to make this analysis was reliable and how

it was applied to reach these conclusions. See generally, Thomas, supra, 2012 U.S. Dist. LEXIS


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at *8-11. Accordingly, Mr. Hendricks offers his net opinions containing bare conclusions

without any reliable methodology to reach those conclusions.

Mr. Hendricks’ declaration contains inconsistencies. Next, there are inconsistencies within Mr. Hendricks’ opinions. Specifically, Mr. Hendricks has

a section in his Declaration regarding “Consumer Awareness.” Stern Decl., Exhibit 46, ¶¶ 28-

30. Therein, he states that:

29. While there is growing public awareness about the credit reporting system, it is by no means universal – particularly when it comes to details. According to a July 2003 survey by the Consumer Federation of America, “Only 25 percent of Americans – and less than 20 percent of those with incomes below $35,000 – said they knew what their credit score was. But only three percent of Americans could, unprompted, name the three main credit bureaus-Experian, Equifax, and Trans Union-that provide both lenders and consumers with information from credit reports. Forty-three percent of Americans (35 percent of those with incomes below $35,000) said they had obtained a copy of their credit report from the three credit bureaus in the past two years.” [Stern Decl., Exhibit 46, ¶ 29 (emphasis added).]

Mr. Hendricks’ Declaration relies upon statistics that do not support his generalized statement

and conclusion that consumers would be deceived by the allegedly offending statement in the

“Settlement Letter.” His statistics actually support the fact that most consumers probably would

not even pay attention to that statement making it immaterial to the consumer. Indeed, neither

Plaintiff appears to have noticed it. See Section VI-4, infra. More importantly, when evaluating

the effect of the “Settlement Letter” the Court is required to utilize the least sophisticated

consumer standard. This begs the question—if only 25 percent of Americans know what their

credit score is and knowledge of the system is “by no means universal,” would there be any

effect on the least sophisticated consumer who is evaluated at a standard lower than the


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“reasonable debtor?” P&P submits that answer is no and that it is supported by the fact that only

2 of the 75 putative class members accepted an offer contained in their Settlement Letter during

the time the offer was valid. Peters Cert., ¶ 11e. This equates to a mere 2.67% of the total

number of people who received the Settlement Letter.

It is also important to note that 15 U.S.C. §1681i details the procedure under the Fair Credit

Reporting Act, 15 U.S.C. §1681 et seq. (“FCRA”) for the “Procedure in case of disputed

accuracy.” Section 1681i(a)(4) states that “[i]n conducting any reinvestigation under paragraph

(1) with respect to disputed information in the file of any consumer, the consumer reporting

agency shall review and consider all relevant information submitted by the consumer in the

period described in paragraph (1)(A) with respect to such disputed information.” (emphasis

added). Thus, while a consumer reporting agency may only accept routine updates from

established furnishers, they are required to reinvestigate disputed information brought to their

attention by a consumer. 15 U.S.C. §1681i. Also, Mr. Hendricks’ relies on the fact that

furnishers are legally obligated to advise the credit bureaus of changes in their tradelines. Stern

Decl., Exhibit 46, ¶¶ 15-17. However, if all furnishers always complied with their obligations,

there would be no need for consumer disputes or lawsuits for violations of the FCRA.

Should a consumer wish to dispute the original creditor’s tradeline as inaccurate because the

account has now been paid, the credit reporting agency is under a duty to investigate.

Accordingly, the statement in the “Settlement Letter” that “Proof the debt has been paid will be

sent to the court and a copy to you so that you can advise the credit bureau” is true. Credit

reporting agencies are required to consider “all relevant information submitted by the consumer.”

15 U.S.C. §1681i(a)(4). There is nothing inaccurate about the statement in the “Settlement


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Letter.” If the consumer wishes to try to dispute a tradeline regarding the debt at issue, the

documentation P&P sends them, as well as, anything subsequently requested from P&P by the

consumer, “can” be used to advise the credit bureaus. P&P, therefore, submits that Mr.

Hendricks Declaration is unsupportive of the legal conclusions he offers regarding P&P’s

liability.

Determinations under section 1692e of the FDCPA are issues of law to be determined by the Court, not an expert; thus, Plaintiffs’ expert’s declaration should be stricken. As stated above, experts are not permitted to provide legal conclusions. Carswell, supra, 381

F.3d at 243-44. It is also the law of the Third Circuit that “the question of whether an

unsophisticated consumer would be confused by collection letter language is one of law rather

than fact.” Newton v. Savit Collection Agency, 2011 U.S. Dist. LEXIS 146479, *11-12 (D.N.J.

2011); Wilson v. Quadramed Corp., 225 F.3d 350, 353, n.2 (3d Cir. 2000). See also

Campuzano-Burgos v. Midland Credit Mgmt., Inc., 550 F.3d 294, 297-301 (3d Cir. 2008). P&P,

therefore, submits that any opinion offered that goes to the legal effect of the statement in the

Settlement Letter is an improper legal conclusion being offered by Plaintiffs expert. This is

solely a decision left to the Court to be determined as a matter of law.

I. Response to Class Size After a more in-depth review of the list of 75 putative class members, P&P has determined that

on several instances a “Settlement Letter” was sent prior to P&P having knowledge that an

Answer was filed. To the extent possible, P&P has reviewed the New Jersey State Court records

to confirm the dates Answers were actually filed with the Court. This information is set forth in

the Peters Cert. and Lo Bue Cert. Of the 75 putative members, 10 files were archived and P&P

cannot confirm the date the debtor’s Answer was filed. Peters Cert., ¶ 11c. Of the 75 putative


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members, 31 had settlement letters sent after an Answer was filed and 22 had settlement letters

sent before or the same day that an Answer was filed. Peters Cert., ¶ 11a and b. The remaining

12 either did not file an answer or filed a motion to re-open the judgment and allow an Answer

which was denied. Peters Cert., ¶ 11d. After this review and based upon the Class Definition,

the putative class is only approximately 31. Peters Cert., ¶ 11a. In fact, if you only consider the

people who may have been “harmed” from receiving the Settlement Letter because they settled

pursuant to the terms therein, although it is not clear that they settled for any reason other than

the savings offered, the putative class is approximately 2 individuals. Peters Cert., ¶ 11e.

J. Response to P&P’s Net Worth Any resolution as to P&P’s net worth will be finalized at the appropriate time as required by the

rules.

K. Response to Class Representatives P&P will more fully respond to the class representatives below in the context of “adequacy.” L. Response to Class Counsel P&P will more fully respond to the class counsel below in the context of “adequacy.” IV. RESPONSE TO MERITS P&P would also like to note that “[t]he primary goal of the FDCPA is to protect consumers from

abusive, deceptive, and unfair debt collection practices including threats of violence, use of

obscene language, certain contacts with acquaintances of the consumer, late night phone calls,

and simulated legal process.” FTC v. Check Investors, Inc., 502 F.3d 159, 165 (3d Cir.


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2007)(quoting Bass v. Stolper, Koritzinsky, Brewster & Neider, S.C., 111 F.3d 1322, 1324 (7th

Cir. 1997).

A. Response to the Purpose of the FDCPA P&P does not dispute the specific contents of this section. B. Response to Cause of Action under the FDCPA P&P does not dispute the specific contents of this section. P&P, however, would also like to

note the following.

With respect to actions brought subject to section 1692e of the FDCPA, the false or misleading

statement must have been a material statement. Rogozinski v. NCO Fin. Sys., 2012 U.S. Dist.

LEXIS 153894, 15-17 (E.D. Pa. 2012)(“An immaterial statement which is false in some

technical sense will not mislead the unsophisticated consumer and does not violate the

FDCPA.”). See also Yentin v. Michaels, Louis & Assocs., 2011 U.S. Dist. LEXIS 104711 (E.D.

Pa. 2011); Wahl v. Midland Credit Mgmt., 556 F.3d 643, 645-46 (7th Cir. 2009); Lorandeau v.

Capital Collection Serv., 2011 U.S. Dist. LEXIS 101994, *23 (E.D. Pa. 2011)(“The approach of

the Sixth, Seventh, and Ninth Circuits to technical falsity is persuasive.”). Accordingly,

materiality – the assessment that the statement had some real importance or great consequence

on the reader – is also required to prove a violation under §1692e.

In Wahl, the issue was an alleged violation of various sections of 1692e for using the term

“principal” to describe the initial $1,149.09 obligation when it included interest and other

charges from the original creditor in a letter sent. Wahl, 556 F.3d at 645. The Court finding that

the evaluation of the principal balance is conducted through the eyes of the entity collecting the


15

debt, held that there was nothing false (technically or otherwise), misleading or deceptive about

the “amount of the debt” set forth in the allegedly offending letter. Similarly, in our case, there

is nothing false (technically or otherwise) about the statement in the Settlement Letter that,

“Proof that the debt has been paid will be sent to the court and a copy to you so that you can

advise the credit bureaus.” Proof that the debt is satisfied would be sent and, if the debtor chose

to, they had the option to advise the credit bureau of same. P&P does not opine on the effect of

sending anything to the credit bureau or even whether anything should be sent.

V. RESPONSE TO CLASS DEFINITIONS, CLASS COUNSEL AND NOTICE P&P does not dispute the contents of this specific section. A. Response to Class Definition As set forth above, a more in-depth review of the list of 75 putative class members revealed that

on several instances a “Settlement Letter” was sent prior to an Answer being filed. Therefore,

based upon the Class Definition, the putative class is approximately 31. Peters Cert., ¶ 11a. See

also Section III-I, supra.

B. Response to Class Claims Definition P&P does not dispute the proposed class claims definition. C. Response to Proposed Class Counsel P&P will address the proposed class counsel below. See Section VI-A-4, infra.


16

D. Response to Notice to the Class P&P does not dispute that Plaintiffs are responsible for the cost of notice. P&P simply notes that

although a list is available with the 75 putative class members’ names and addresses, there is no

certainty whether the addresses on record remain valid.

P&P objects to the fact that Plaintiffs have failed to provide any information about the proposed

class notice. Instead, Plaintiffs simply state they will seek to compel the list of the 75 putative

class members. P&P objects to the “threat” of a motion to compel by Plaintiffs as unnecessary.

The Court has already ruled on all pre-certification discovery disputes. Should the Plaintiffs’

motion be granted, certain previously withheld discovery will be voluntarily produced as a result

of the new circumstances of this case.

Moreover, P&P is unable to make any assessment on whether the proposed class notice would be

the best notice that is practicable under the circumstances. Plaintiffs have also failed to identify

whether they have consulted with any Settlement Administrators, what the proposed cost of the

notice would be, what the contents of the notice would contain, and how Plaintiffs’ counsel

intends to fund these costs. P&P is at a disadvantage without this information being presented in

Plaintiffs’ moving papers. Without some of this information, it is impossible to determine if

Plaintiffs’ counsel can adequately fund the resources necessary to provide notice.

VI. RESPONSE TO LEGAL ARGUMENT THAT THE RECORD ESTABLISHES NUMEROSITY, COMMONALITY, TYPICALITY, ADEQUACY, SUPERIORITY AND PREDOMINANCE; THEREFORE, CERTIFICATION OF A “B3” CLASS IS WARRANTED P&P does not dispute the information contained in this specific section. P&P, however,

respectfully submits that there are some differences with distinctions between the instant matter


17

and Stair v. Thomas & Cook, 254 F.R.D 191 (D.N.J. 2008) relied upon by Plaintiffs. Those

distinctions will be addressed below as to each element Fed. R. Civ. P. 23.

P&P also submits that it is “clear that the party seeking certification must convince the district

court that the requirements of Rule 23 are met[.]” In re Hyrdogen Peroxide Antitrust Litigation,

552 F.3d 305, 315-16 (3d Cir. 2008). See also Marcus v. BMW of N. America, LLC, 687 F.3d

583, 591 (3d Cir. 2012); Stair, supra, 254 F.R.D. at 197. Moreover, the Third Circuit has

followed the Supreme Court and “emphasized that ‘actual, not presumed, conformance’ with

Rule 23 requirements is essential.” Id. at 591 (citations omitted).

A. Response to the Elements of Rule 23(a) are satisfied. P&P does not dispute the law set forth in this specific section of Plaintiffs’ Class Brief. P&P,

however, respectfully submits that all four elements are not easily satisfied in the instant matter.

1. Response to Numerosity P&P does not dispute the information contained in this specific section. As stated above, a more

in-depth review of the list of the 75 putative class members indicates that, pursuant to Plaintiffs’

proposed class definition, the putative class contains 31 members. Peters Cert., ¶ 11a.

2. Response to Commonality P&P does not dispute the law set forth in this specific section by Plaintiffs. P&P, however,

respectfully submits that not every putative class member was sent the “Settlement Letter”

subsequent to the filing of an Answer in an underlying collection action. As mentioned above, a

more in-depth review of the list of the 75 putative class members revealed that only 31 actually

were sent a “Settlement Letter” after their answer was filed with the Court. In fact, several


18

“Settlement Letters” were sent out to debtors before our office received any knowledge from the

Defendant or the Court that an Answer had been filed. Thus, P&P did not always have

knowledge an Answer was filed which means that this does not appear to be a required criteria

for sending the “Settlement Letter.” Accordingly, it is not a “common fact” that each putative

class member received the letter after they filed an Answer.

It is also worth noting that 12 of the 75 putative class members either did not file answers or filed

motions to allow an answer out of time which were denied. Peters Cert., ¶ 11d. Thus, there

appears to be several circumstances that re not common among the proposed representatives and

the putative class.

3. Response to Typicality Again, it is not a common fact that all of the 75 putative class members were sent the

“Settlement Letter” after an Answer was filed to a complaint filed by New Century. See Section

VI-A-1 and III-I.

Since the typicality requirement overlaps with adequacy, a more detailed discussion of the

Plaintiffs’ adequacy will be set forth below.

4. Response to Adequacy “To satisfy the requirement of adequate representation, a class representative must have at least

minimal knowledge about the case so he can make informed decisions regarding the litigation.

‘Courts have denied certification where the representative appeared unaware of even the most

material aspects of his case, not knowing why particular defendants are being sued, and having

no conception of the class of persons that he purportedly represents.’” Dotson v. Portfolio


19

Recovery Associates, LLC, 2009 U.S. Dist. LEXIS 46903, *12-14 (E.D. Pa. 2009)(citations

omitted).

To this extent, Courts have found that “a party who is not familiar with basic elements of its

claim is not considered to be an adequate representative for the class because there is no sense

that there is an actual party behind counsel’s prosecution of the action.” Burkhalter Travel

Agency v. MacFarms Int’l, Inc., 141 F.R.D. 144, 153 (N.D. Cal. 1991)(citing Koenig v. Benson,

117 F.R.D. 330, 337 (E.D.N.Y. 1987))(additional citation omitted). See also Saylor v. Lindsley,

456 F.2d 896, 900 (2d Cir. 1972)(“[W]e are not willing to go to the other extreme and accept the

view that the attorney for the plaintiff is the dominus litis and the plaintiff only a key to the

courthouse door dispensable once entry has been effected.”). Accordingly, “[s]everal district

courts thus properly denied class certification where the class representatives had so little

knowledge of and involvement in the class action that they would be unable or unwilling to

protect the interests of the class against the possibly competing interests of the attorneys.”

Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 727 (11th Cir. 1987).

In the instant matter, Plaintiff, Alan Setneska, does not know what the lawsuit is truly about.

Specifically, the following exchange occurred:

Q. Mr. Setneska, what is your understanding of the laws that were abused in this case? A. That I would have to seek legal advice and to inform you of what violations have occurred. Q. So you have, outside of your counsel’s advise, no understanding of what this lawsuit is about? [objection omitted]


20

Q. Besides Mr. Stern’s advice, do you have any understanding of what the lawsuit is about? A. No. [Peters Cert., Exhibit A, 39:8-23.]

In addition to lacking an understanding of the basis for his lawsuit, Mr. Setneska also admitted

that he could not recall if he reviewed the instant complaint before it was filed. Peters Cert.,

Exhibit A, 16:12-14. Moreover, when asked “[w]hat is your understanding, if you have any, of

your role in this lawsuit[,]” Mr. Setneska responded “I can’t say for sure.” Peters Cert., Exhibit

A, 43:18-20. For these reasons, Mr. Setneska is not an adequate class representative.

Lastly, with respect to Mr. Setneska, he is aware that he has a judgment against him in his

underlying collection action and that any recover in this matter may be subject to levy. Peters

Cert., Exhibit A, 44:11-14. Mr. Setneska’s interest in obtaining a favorable settlement for

himself may be more important than protecting the interests of the class as he must consider the

pending judgment against him. This, P&P contends, is another reason why Mr. Setneska is not

an adequate class representative.

With respect to Plaintiff Williams, she did not review the original complaint before it was filed.

Peters Cert., Exhibit B, 44:15-45:21. With respect to Ms. Williams understanding of the instant

case, she consistently stated that it had to do with being sued after the statute of limitations had

passed. See Peters Cert., Exhibit B, 50:8-15 and 51:14-54:14. It was only on the second day of

testimony that Ms. Williams’ acknowledged that the lawsuit had something to do with “a letter

that [she] received.” Peters Cert., Exhibit C, 183:4-15. See also Peters Cert., Exhibit C 188:21-

192:3 (explaining Ms. Williams’ understanding of the “Settlement Letters” bad qualities).


21

However, Ms. Williams admitted she “filed” the “Settlement Letter” away after she received it

and subsequently provided everything to her instant counsel because:

I mean, I sent him everything that was regarding around anything I ever received from [Pressler], not knowing that [the Settlement Letter] was something that was important. To me, I didn’t think it was important, but like I said, I’m glad I’m thorough. I just gave him everything to review, and he makes that decision on what’s pertinent and what’s important. [Peters Cert., Exhibit C, 191:20-192:3 (emphasis added).]

Lastly, Ms. Williams did not know the name of the other named/proposed class representative,

although she knew one existed. Peters Cert., Exhibit C, 182:21-183:3.

Based on their testimony, the Plaintiffs are merely acting as the keys to the Courthouse for their

counsel to prosecute the instant action which is improper. P&P, therefore, submits that the

Plaintiffs are not adequate representatives of the putative class. What is adequately established

by the two proposed class representatives is the immateriality of the effect of the statement on

the least sophisticated consumer.

With respect to Plaintiffs’ counsel, he has advised the Court that he has undertaken work to

investigate the potential claims of the Plaintiffs. In the Stern Decl., paragraph 4.05, the proposed

class counsel sets forth research he has done on PACER to search for claims that have been filed

against P&P that are similar to those asserted herein. While counsel has noted the Derricote v.

Pressler & Pressler, LLP matter, there is another significant matter that is currently pending

before the District Court of New Jersey, DeFazio & Grub v. Pressler & Pressler, LLP, et al.,

2:10-cv-03602-JLL-CCC (“Defazio Matter”) which counsel failed to recognize.


22

The Defazio Complaint (2:10-cv-03602, ECF Doc. 1, PageID: 19) contains an exhibit which is a

March 22, 2010 letter that contains the phrase, “This will pay off the debt owed to our client.

Proof that the debt has been paid will be sent to the Court and a copy to you, so that you can

advise the credit bureau.” This is the exact same language at issue in the instant matter. Of more

concern, is that currently pending before the Court in the Defazio Matter is a joint motion for

preliminary approval of class action settlement which was filed on November 30, 2011. (2:10-

cv-03602, ECF Doc. 49). The motion, if granted, would encompass all potential putative class

members encompassed in the instant action. The settlement in the Defazio Matter would leave

each named Plaintiff with an individual action only in the instant matter. Plaintiffs’ counsel

failure to investigate that litigation which has a direct impact on the instant case demonstrates his

inadequacy as class counsel in this matter.

B. Response to the Class satisfies Rule 23(b)(3): Predominance and Superiority As noted above, Plaintiffs’ counsel did not sufficiently investigate other pending claims that will

have a sufficient impact on the instant class claims. The fact that there is also pending litigation

that would encompass the putative class makes the Fed. R. Civ. P. 23(b)(3)(B) weigh in favor of

denying Plaintiffs’ application.

Also, as noted above, the common issues do not predominate as the class definition requires the

putative class members to have filed an answer subsequent to receiving the “Settlement Letter.”

Therefore, the common issues of law and fact do not predominate over the class.

CONCLUSION Wherefore, based upon the foregoing, P&P respectfully requests that the Court deny Plaintiffs

motion for class certification.


23

Respectfully submitted, By: __s/Mitchell L. Williamson______ Mitchell L. Williamson, Esquire Attorneys for Defendant Pressler and Pressler, L.L.P. 7 Entin Road Parsippany, NJ 07054 Phone: 973-753-5100 Fax: 973-753-5353 Email: [email protected] On the Brief: Michael J. Peters, Esq. Mitchell L. Williamson, Esq.


P&P File # P151618

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Newark)

================================== : : NATALIE A. WILLIAMS et al, : 2:11-cv-07296 (KSH)(PS) :

: Plaintiffs :

: CERTIFICATION OF vs. : MICHAEL J. PETERS, ESQ.

: PRESSLER & PRESSLER, LLP, :

: Defendant :

: ================================== : I, MICHAEL J. PETERS, of full age, do herby certify as follows: 1. I am an attorney at law in the State of New Jersey associated with the law firm of Pressler

and Pressler, L.L.P. (“P&P”) with its principle offices located at 7 Entin Road, Parsippany, New

Jersey and I am familiar with the facts of this case. I make the following statements based upon

my review of: (1) P&P’s records and/or files for the putative class members and (2) the Superior

Court of New Jersey’s online records system, namely, the Judiciary Electronic Filing and

Imaging System (“JEFIS”) and the Automated Case Management System (“ACMS”).

2. I specifically reviewed 26 of the 75 putative class members’ files from P&P’s records.

My colleague, Gina M. Lo Bue, Esq., reviewed the remaining 49 putative class members’ files

from P&P’s records. Ms. Lo Bue, Esq., will submit her own certification with respect to the

details she reviewed and examined for those 49 files.

ARCHIVED FILES

3. Of the 26 files that I reviewed, 5 putative class members’ files were archived from the

Superior Court of New Jersey’s JEFIS and ACMS records. With respect to these 5 files, I was

Case 2:11-cv-07296-KSH-PS Document 38-1 Filed 02/25/13 Page 1 of 5 PageID: 375

2

unable to determine the date the debtor filed their Answer with the court with respect to the

collection claim. However, with respect to these 5 putative class members’ files, P&P received 4

of 5 of their Answers after sending the Settlement Letter and only 1 before sending the

Settlement Letter.

SETTLEMENT LETTER SENT BEFORE OR SAME DAY ANSWER FILED

4. Of the 26 files that I reviewed, I was able to confirm via JEFIS and/or ACMS that 8

putative class members’ filed their Answer with the Court in their respective collection actions

after or on the same day that P&P sent the allegedly offending “Settlement Letter”. Note: 6 of 8

were sent after and the remaining 2 were sent the same day.

SETTLEMENT LETTER SENT AFTER ANSWER FILED


putative class members’ filed their answer and subsequently were sent the allegedly offending

“Settlement Letter.”

NO ANSWER FILED


putative class members’ answers were never filed with the Court. Specifically, for one file the

debtor filed a motion to vacate a judgment which had an Answer annexed thereto, however, said

motion was denied. The second file, the debtor filed a motion to permit discovery which had an

Answer annexed thereto, however, said motion was denied.

ANSWER FILED WITH MOTION TO VACATE JUDGMENT


putative class member filed a motion to vacate judgment which was subsequently granted by the

Court. Whether the filing date of that debtor’s answer is considered the day the motion was filed


3

or the day the order granting the motion was filed is insignificant since both predate the sending

of the letter. Therefore, only 11 of 26 putative class members’ files I reviewed can be confirmed

to fit the proposed class definition that they were sent a Settlement Letter subsequent to filing an

answer.

SETTLEMENT STATISTICS

8. Of the 26 files that I reviewed, I was able to confirm that 2 of 26 putative class members

actually settled their collection action by accepting a payment option offered in the Settlement

Letter during the time period when the Settlement Letter was valid.

9. Of the 26 files that I reviewed, I was able to confirm that 2 of the 26 putative class

members (a different 2 than referred to in paragraph 8 above) settled their collection action

during the time period when the Settlement Letter was valid, however, the settlement was not

pursuant to the terms of the Settlement Letter.

9a. 1 of the 2 putative class members referred to in paragraph 9 retained an attorney

who negotiated a settlement outside the parameters offered in the Settlement Letter.

9b. The remaining 1 of the 2 putative class members referred to in paragraph 9 called

P&P’s office because he received the settlement letter. In a subsequent conversation with this

debtor, a settlement was reached for an amount outside the parameters offered in the Settlement

Letter during the period when the Settlement Letter remained valid.

10. Of the 26 files that I reviewed, 2 of the 26 putative class members’ files (a different 2

than those referred to in paragraphs 8 and 9) show that they received a substantially similar letter

to the “Settlement Letter” containing the allegedly offending language which was sent post-

judgment.


4

SUMMARY OF STATISTICS

11. Based upon my personal review of 26 of the 75 files and my review of my colleague,

Gina M. Lo Bue, Esq.’s certification, I summarize the statistics regarding the putative class as

follows:

11a. 31 of 75 were sent Settlement Letters after filing an Answer.

11b. 22 of 75 were sent Settlement Letters before or the same day as the filing of an

Answer.

11c. 10 of 75 cannot be confirmed whether the Settlement letter was sent before or

after the Answer was filed with the Court because the cases were archived under JEFIS and

ACMS. However, of those 10, 1 was sent the Settlement Letter after P&P received the Answer

and 9 were sent the Settlement Letter before P&P received the Answer.

11d. 12 of 75 either didn’t file an Answer at all with the Court or filed a motion to

vacate default judgment or a motion seeking substantially similar relief which was denied.

11e. 2 of 75 settled their collection action pursuant to one of the offers contained in the

Settlement Letter during the time period when the Settlement Letter was valid.

11f. 3 of 75 settled their collection action during the time period when the Settlement

Letter was valid but for terms outside of the parameters set forth in the Settlement Letter.

11g. 70 of 75 did not settle their collection action pursuant to any of the offers/terms

contained in the Settlement Letter during the time period when the Settlement Letter was valid.

EXHIBITS

12. Annexed hereto as Exhibit A are true and accurate copies of the relevant transcript pages

from the deposition of Alan J. Setneska taken on January 4, 2013.

13. Annexed hereto as Exhibit B are true and accurate copies of the relevant transcript pages


5

from the deposition (day 1) of Natalie A. Williams taken on December 21, 2012.

14. Annexed hereto as Exhibit C are true and accurate copies of the relevant transcript pages

from the deposition (day 2) of Natalie A. Williams taken on January 7, 2013.

15. P&P is a party to the action currently pending before the United States District Court for

the District of New Jersey titled, Defazio et al. v. Pressler & Pressler, L.L.P. et al, 2:10-cv-

03602-JLL-CCC (“Defazio Matter”).

I certify under penalty of perjury that the foregoing is true and correct.

Dated: February 25, 2013 _____s/Michael J. Peters__ Michael J. Peters, Esq. Pressler and Pressler, L.L.P. Attorneys for Defendant 7 Entin Road Parsippany, New Jersey 07054 Telephone: (973) 753-5100 / Facsimile: (973) 753-5353 [email protected]


EXHIBIT “A”


ALAN JOSEPH SETNESKA - 1/4/2013

1-800-325-3376 www.merrillcorp.com/lawMerrill Corporation - New York

Page 1

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY_______________________________________x

NATALIE A. WILLIAMS andALAN J. SETNESKA, individually andon behalf of all others similarlysituated,

Plaintiffs,

-against- Case No. 2:11-cv-07296-KSH-PSPRESSLER AND PRESSLER, LLP,

Defendant._______________________________________x

January 4, 2013 11:10 a.m.

Deposition of ALAN JOSEPH SETNESKA, taken by

Defendant, pursuant to Agreement, at the offices of

Pressler and Pressler, LLP, 7 Entin Road, Parsippany,

New Jersey, before Denise L. Daniels, a Shorthand Reporter

and Notary Public within and for the State of New Jersey.




Page 2

1

2 A p p e a r a n c e s:

3 PHILIP D. STERN & ASSOCIATES, LLC

4 Attorneys for Plaintiff 697 Valley Street

5 Suite 2D Maplewood, New Jersey 07040

6 (973) 379-7900

7 BY: PHILIP D. STERN, ESQ. [email protected]

8

9 PRESSLER AND PRESSLER, LLP

10 Attorneys for Defendant 7 Entin Road

11 Parsippany, New Jersey 07054 (973) 753-5100

12 BY: MITCHELL L. WILLIAMSON, ESQ.

13 [email protected] -and-

14 MICHAEL I. PETERS, ESQ. [email protected]

15

16

17

18

19

20

21

22

23

24

25




Page 16

1 ALAN JOSEPH SETNESKA

2 26"?

3 A Yes.

4 Q If you will turn to Page 12, please,

5 and look at Paragraph 86.

6 A Okay.

7 Q Does reading that paragraph refresh

8 your recollection as to when you were served

9 with the Complaint in the New Century versus

10 Setneska matter?

11 A No, it does not.

12 Q Did you review this Complaint before

13 it was filed?

14 A I can't recall.

15 Q Did you review the amended Complaint,

16 Exhibit D 3, before it was filed?

17 MR. STERN: Didn't you just ask that?

18 MR. PETERS: Just to be clear, I

19 wasn't referring to the New Century

20 collection Complaint, just so it's clear.

21 Q The document before you, just so it's

22 clear for the record, did you review that

23 document before it was filed?

24 A This whole -- I'm trying to get my

25 words right.




Page 39


2 the debt collector should be held to higher

3 standards and that they are not to abuse

4 the law, and I'm asking what is his

5 understanding of what laws were abused.

6 MR. STERN: You asked him to identify

7 the law.

8 Q Mr. Setneska, what is your

9 understanding of the laws that were abused in

10 this case?

11 A That I would have to seek legal advice

12 and to inform you of what violations have

13 occurred.

14 Q So you have, outside of your counsel's

15 advice, no understanding of what this lawsuit is

16 about?

17 MR. STERN: Objection. You're arguing

18 with him and mischaracterizing his

19 testimony.

20 Q Besides Mr. Stern's advice, do you

21 have any understanding of what the lawsuit is

22 about?

23 A No.

24 MR. WILLIAMSON: Is this an

25 appropriate time to take a break?




Page 43


2 me know when you've reviewed those.

3 A Okay. Okay, I've read it.

4 Q Do you know what your involvement in

5 defending yourself in the lawsuit filed by New

6 Century Financial against you has to do with

7 your instant claims in this federal lawsuit?

8 MR. PETERS: I'm asking if he knows.

9 MR. STERN: To me, in light of what I

10 indicated before, I was withdrawing 97.01,

11 I don't know that it's relevant anymore.

12 MR. PETERS: All right, strike that

13 question. We can put this aside.

14 Q Mr. Setneska, what is your

15 understanding, if you have any, of your role in

16 this lawsuit?

17 A I'm sorry, repeat it again, please?

18 Q What is your understanding, if you

19 have any, of your role in this lawsuit?

20 A I can't say for sure.

21 Q Are you advancing any of the costs

22 associated with the litigation of this

23 Complaint?

24 A No.

25 Q What do you expect to receive, if




Page 44


2 anything, from continuing as a Plaintiff in this

3 case?

4 A I don't know.

5 Q Have you been promised anything by

6 Mr. Stern for being a Plaintiff in this case?

7 A No.

8 Q Do you know the other Plaintiff in

9 this action, Natalie Williams?

10 A No.

11 Q Are you aware that any money that you

12 receive with respect to this litigation may be

13 subject to levy by any judgment creditors?

14 A Yes.

15 MR. PETERS: I would just like to take

16 a few minutes to review my materials with

17 Mr. Williamson.

18 (There was a pause in the proceedings

19 at this point.)

20 Q Mr. Setneska, we just took a break, a

21 short recess.

22 Did you have any conversations with

23 your attorney during that recess?

24 A Yes.

25 Q Did you have any conversations


EXHIBIT “B”


NATALIE A. WILLIAMS - 12/21/2012


Page 1



NATALIE A. WILLIAMS,

Plaintiff,

-against- Case No. 2:11-cv-07296-KSH-PS.PRESSLER & PRESSLER, LLP,

Defendant._______________________________________x

December 21, 2012 12:18 p.m.

Deposition of NATALIE A. WILLIAMS, taken by

Defendant, pursuant to Agreement, at the Federal Courthouse,

50 Walnut Street, Newark, New Jersey, before Denise L.

Daniels, a Shorthand Reporter and Notary Public within and

for the State of New York.




Page 2

1



4 Attorneys for Plaintiff 697 Valley Street


6 BY: PHILIP D. STERN, ESQ.

7 [email protected]

8

9 PRESSLER AND PRESSLER, LLP Attorneys for Defendant

10 7 Entin Road Parsippany, New Jersey 07054


12 [email protected] MICHAEL I. PETERS, ESQ.

13

14

15

16

17

18

19

20

21

22

23

24

25




1 NATALIE A. WILLIAMS

2 objection, you then came back to me and

3 start explaining some reasons. I wanted an

4 opportunity to look at what your reasons

5 were.

6 I stated that I thought it was beyond

7 the scope of discovery, and you made a

8 comment about the complaint. I want to

9 take a quick look at the complaint. That's

10 all I'm trying to do.

11 MR. WILLIAMSON: I'm going to strike

12 the question right this second and ask you

13 a different question because I would like

14 to move on.

15 Q I'm going to show you what I marked as

16 D 2.

17 (Class action complaint and jury

18 demand filed December 16, 2011 marked

19 Exhibit D 2 for identification, as of this

20 date.)

21 Q I ask you to just take a quick look

22 through that. I'll identify that for the

23 record.

24 This is the class action complaint and

25 jury demand filed on December 16th, 2011.





2 Now, let me ask you a question. I see

3 you're reading it, and you've only read the

4 first page or two. Have you seen that before,

5 that document, do you know?

6 A I believe so.

7 Q If you want to look through it to be

8 sure, that's fine.

9 A Yes.

10 Q Yes, you've seen it before?

11 A Yes.

12 Q Did you review it before it was filed?

13 Did you see it before it was filed or after it

14 was filed?

15 A I believe after.

16 Q You wouldn't have reviewed it before

17 it was filed; is that correct?

18 A No.

19 Q No what?

20 A No, I didn't see it before it was

21 filed.

22 Q I'm going to ask you to take a look,

23 just for a second, go to the last couple of

24 pages. Do you see on the top of the document,

25 it says "Page 14 of 18, 15 of 18," right on the




Page 50


2 can put that aside.

3 Can you tell me in your own words what

4 you believe this case is about?

5 MR. STERN: I'm going to object as to

6 form as to the word "believe." Her beliefs

7 are not relevant to this case.

8 Q I'm going to ask you to put in your

9 own words what you understand this case to be

10 about?

11 A What I understand the case to be about

12 is like I initially answered in my complaint

13 before any lawyers or anything. To my

14 understanding, this account had already passed

15 the Statute of Limitations.

16 Q When you say "this account," you're

17 referring to the account that you were sued on

18 in the State Court action?

19 A Correct. And I initially answered it

20 that way. As I went to see Mr. Ukegbu at the

21 Legal Services, he confirmed that it did pass

22 but longer than I had assumed. I thought it was

23 seven years, because it was a store card, he

24 told me that it was four years, the Statute of

25 Limitations. Then I definitely knew by that




Page 51


2 point it had passed.

3 The other suggestion that he told me

4 to do on my own is to get a copy of my credit

5 report because I hadn't obtained one in quite

6 some time. And I did eventually, shortly after

7 I met with him. And he said, you know, "Check

8 to see if this is on your credit report still."

9 And I did check my credit report, I

10 went through it, and I saw that it wasn't, but I

11 already knew that the account was a pretty old

12 account. I was guessing maybe nine, maybe going

13 on ten years, that's what I guessed it to be.

14 Q But what I'm asking you is what this

15 case, not that case, this case is about, this

16 case in Federal Court.

17 You sued Pressler and Pressler.

18 You're the named Plaintiff on the lawsuit, which

19 says -- the initial lawsuit, which says "Natalie

20 A. Williams, individually appearing on behalf of

21 all others similarly situated." So what do you

22 understand --

23 A So from my understanding, it's that

24 after I dealt with the State case and found out

25 that the Statute of Limitations had already




Page 52


2 passed, actually longer than I had assumed,

3 that's when I -- you know, I thought to myself,

4 you know, that it's not proper to sue someone

5 after the Statute of Limitations have passed.

6 So me personally, I thought that, you

7 know, how can you sue someone after the time has

8 already passed, and plus, from what I understood

9 from what Mr. Ukegbu said that because it was a

10 store card, it really had passed. I was not

11 sure exactly if it was a Statute of Limitations,

12 I presumed it was seven because that's what I

13 heard before in terms of Statute of Limitations

14 when you hear that.

15 So when I thought about that, I think

16 I did contact Mr. Ukegbu again, and he did

17 mention it when I initially went to see him, but

18 then after the State case was coming, you know,

19 coming to a wrap basically, I think I put a

20 motion in about the dismissal or getting it that

21 way, and that's when he gave me the referral.

22 To my understanding, my main way of

23 interpreting the case is you're not supposed to

24 sue a consumer after the time has lapsed, and

25 particularly when I found out that it wasn't on




Page 53


2 my credit report. What I thought about, how

3 long ago it was confirmed.

4 Q So it's your understanding that this

5 lawsuit, the issue, and correct me if I'm wrong,

6 that's what I'm asking you to do. It's your

7 understanding this lawsuit -- it's your

8 understanding that the issue in this lawsuit --

9 MR. WILLIAMSON: Let me strike that.

10 I've got to think for a second.

11 Off the record.

12 (Discussion off the record.)

13 Q Am I correct that your understanding

14 of this complaint or the basis of this complaint

15 is that you were sued by Pressler and Pressler

16 on behalf of their client, New Century Financial

17 Services for a debt that was out of statute?

18 MR. STERN: Objection. There's no

19 question. You sort of stopped in the

20 middle of your sentence.

21 MR. WILLIAMSON: No, I finished the

22 question. You can read back the question.

23 (Record read.)

24 MR. STERN: Do you want to reask the

25 question?




Page 54


2 Q Am I correct that your understanding

3 of the basis of this complaint, Federal Court

4 complaint, is that you were sued by Pressler and

5 Pressler on behalf of their client, New Century

6 Financial Services, for a debt that was out of

7 statute?

8 MR. STERN: I object as to form. You

9 can answer.

10 A Yes, that's my interpretation of the

11 case. There may be other things that I don't

12 know about that -- maybe there's more

13 violations, I don't know, but that's the main

14 premise in my interpretation, yes.

15 Q Do you have a checking account

16 currently?

17 MR. STERN: Hold on. No objection.

18 A Yes.

19 Q How long have you had that checking

20 account?

21 A The checking account that I have with

22 Capital One I've had since I got married, which

23 was in April -- around April of 2010.

24 Q Did you have a checking account prior

25 to that?


EXHIBIT “C”




Page 135



NATALIE A. WILLIAMS andALAN J. SETNESKA, individually andon behalf of all others similarlysituated,

Plaintiffs,

-against- Case No. 2:11-cv-07296-KSH-PSPRESSLER AND PRESSLER, LLP,

Defendant._______________________________________x

January 7, 2013 12:20 p.m.

Continued deposition of NATALIE A. WILLIAMS, taken by

Defendant, pursuant to Agreement, at the Federal Courthouse,

50 Walnut Street, Newark, New Jersey, before Denise L.

Daniels, a Shorthand Reporter and Notary Public within and

for the State of New Jersey.




Page 136

1



4 Attorneys for Plaintiffs 697 Valley Street


6 BY: PHILIP D. STERN, ESQ.

7 [email protected]

8

9 PRESSLER AND PRESSLER, LLP Attorneys for Defendant

10 7 Entin Road Parsippany, New Jersey 07054


12 [email protected] -and-

13 MICHAEL I. PETERS, ESQ. [email protected]

14

15

16

17

18

19

20

21

22

23

24

25




Page 182


2 based upon a letter that I received and possibly

3 quite a few other people have received as well.

4 So that's why I believe it's a class action.

5 Q Do you know what a class

6 representative -- you talked about it, I think

7 you did, what a class representative is. Do you

8 know what that is?

9 A The only understanding that I

10 understand from a class action representative,

11 it's normally one person that is kind of, I

12 guess, you know, standing out from the masses,

13 the other people that may be in the suit. I

14 don't know if they would normally be the initial

15 person that started it, but I just know that

16 they normally would have their name on the

17 documentation.

18 Q Is there a class representative in

19 this case, do you know?

20 A Yes, I believe it's me.

21 Q Is there any other class

22 representative besides that you know of?

23 A Not that I know of, but I heard of

24 another guy that you guys had a deposition with.

25 I previously kind of heard about him. I don't




Page 183


2 know if he's a representative, that I don't

3 know.

4 Q What is the proposed class in this

5 case? You said that this is a class action. Do

6 you know what the proposed class is? What is

7 the proposed class, what are the claims of the

8 class, do you know?

9 A I don't know all the claims of the

10 class, but in terms for me, there's a couple of

11 things. I think in terms for me, it's a letter

12 that I received, that's one of the main reasons

13 for the lawsuit, and also my personal belief

14 that I got sued for an account that had already

15 lapsed.

16 Now, I don't know in terms of the

17 FDCPA, I don't know all the different things

18 that they are, but those are my personal. In

19 terms of the other gentleman, I don't know if

20 he's a representative, his is something

21 different. I think he may have also received a

22 letter as well, but I think in his case, the

23 wording that's on that letter -- in my case, it

24 wasn't at all put on my credit report, but I

25 think in his case it was and, then it was




Page 188


2 A Yes.

3 Q That's pretty much where you're coming

4 from?

5 A Yes.

6 Q There wasn't anything that was said to

7 you that upset you? I mean that -- what I'm

8 trying to get at, there was no, what I would

9 characterize and maybe you would share my

10 characterization, bad behavior?

11 A By the law firm?

12 Q The law firm, something that you would

13 call out of bounds, bad language, unacceptable

14 behavior?

15 MR. STERN: I'll object to the form.

16 You can answer it.

17 A I mean in terms of the law firm, their

18 personal -- the people that represented -- that

19 spoke to me personally, no, no bad behavior, but

20 in terms of me being sued by the law firm --

21 Q That's the problem, you were sued?

22 A Right. And then, you know, after I

23 got sued, you know, it came to my

24 understanding -- like I didn't know about the

25 wording. Also the wording on that




Page 189


2 documentation --

3 Q What documentation?

4 A It should be in here. The letter

5 that's worded for Exhibit D 7, like I said, I

6 can only speak for myself. Yes, I'm mad that I

7 got sued, but also the wording in this letter,

8 too, is to me like a false assumption, me

9 personally, that this would be cleared from my

10 credit report.

11 Q Where does it say that?

12 A Basically it says, I guess in the

13 second paragraph, "This payment will satisfy the

14 pending lawsuit. Proof that the debt has been

15 paid will be sent to the Court and a copy to you

16 so that you can advise the credit bureau if

17 you're unable to pay the 75 percent. We can

18 expect 197.55 down, 25 percent of the full

19 balance and enter acceptable arrangements."

20 So based upon this wording, like I

21 said, me personally, yes, I'm mad that I got

22 sued, also sued around Christmastime. Also that

23 to someone else, they would think that if they

24 make this payment or, you know, whatever this

25 arrangement they're trying to make, that this




Page 190


2 would be cleared, that that's to me not

3 necessarily the truth, from what I came to

4 understand.

5 Q So tell me something --

6 A Which I also think is not right.

7 Q Have you talked to anybody else about

8 this letter other than Mr. Stern?

9 A No. Well, my husband.

10 Q When you make the statement that you

11 just made, how somebody else would understand

12 it, what's the basis of that statement?

13 A That's just my belief.

14 Q Did Mr. Stern tell you that?

15 A No. My thing is that, like I said,

16 yes, I'm mad that I got sued, yes, I got upset

17 that I got sued around my daughter's first

18 Christmas, the holidays, but also I felt

19 personally -- before I met Mr. Stern, I also

20 felt personally that the wording on here is a

21 little deceptive because someone would make a

22 payment -- and when it was brought up that I

23 made a payment in 2006 -- because I don't recall

24 it, but it's been made, I'm not even sure if I

25 had received a letter like this, made a payment




Page 191


2 thinking that this would be wiped from -- wiped

3 off the record, paid off and be done.

4 Q You keep talking about -- I'm asking

5 you where it says any of this information.

6 Quite frankly, you're echoing what you admit was

7 written by Mr. Stern and not by you in the

8 Complaint?

9 A What was written?

10 Q When you got that letter, what did you

11 do with it?

12 A I filed it away.

13 Q What else did you do with it?

14 A I didn't do anything else with it, I

15 filed it away. When I was referred --

16 Mr. Ukegbu referred me to Mr. Stern. Everything

17 that I received from your law office I scanned

18 it and e-mailed it to him. I didn't know if it

19 was going to be pertinent or not.

20 I mean, I sent him everything that was

21 regarding around anything I ever received from

22 you, not knowing that this was something that

23 was important. To me, I didn't think it was

24 important, but like I said, I'm glad I'm

25 thorough. I just gave him everything to review,




Page 192


2 and he makes that decision on what's pertinent

3 and what's important.

4 Q Okay, that's fair enough.

5 A But in the past, I would have believed

6 this, and I think I've done it before, and

7 that's why I believe a payment was made back in

8 2006 thinking that this would be -- you know,

9 you paid us a certain amount, it's like a

10 settlement amount, and it would be done.

11 And sure enough, I believe I must have

12 done something like that back in 2006, and yet

13 here it is, years later resurfacing again.

14 Q Wait a minute --

15 A So that's why when I got this letter,

16 I didn't believe it initially, but when he

17 received it, he brought it to my attention about

18 the wording on here.

19 Q Do you expect to receive payment as a

20 result of this lawsuit?

21 A I don't know if I will receive

22 payment. I just know that -- I just know that

23 when someone does something that isn't right --

24 I was raised this way, my mom raised me this

25 way. When someone does something that's right,



P&P File # P151618

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Newark)

NATALIE A. WILLIAMS et aI,

Plaintiffs

vs.

PRESSLER & PRESSLER, LLP,

Defendant

2:11-cv-07296 (KSH)(PS)

CERTIFICATION OF GINA M. LO BUE, ESQ.

I, GINA M. LO BUE, of full age, do herby certify as follows:

1. I am an attorney at law in the State of New Jersey associated with the law firm of Pressler

and Pressler, L.L.P. ("P&P") with its principle offices located at 7 Entin Road, Parsippany, New

Jersey and I am familiar with the facts of this case. I make the following statements based upon

my review of: (1) P&P's records and/or files for the putative class members and (2) the Superior

Court of New Jersey's online records system, namely, the Judiciary Electronic Filing and

Imaging System ("JEFIS") and the Automated Case Management System ("ACMS").

2. I specifically reviewed 49 of the 75 putative class members' files from P&P's records.

My colleague, Michael J. Peters, Esq., reviewed the remaining 26 putative class members' files

from P&P's records. Mr. Peters, Esq., will submit his own certification with respect to the

details he reviewed and examined for those 26 files.

ARCHIVED FILES

3. Of the 49 files that I reviewed, 6 putative class members' files were archived from the

Superior Court of New Jersey's JEFIS and ACMS records. With respect to these 6 files, I was


unable to determine the date the debtor filed their Answer with the court with respect to the

collection claim. However, P&P received their Answers after sending the Settlement Letter.

3a. One of the 6 putative class members' whose file is archived is Plaintiff, Natalie A.

Williams. Although her file has been archived from JEFIS and ACMS, her

Answer was filed on January 7, 2011. See Plaintiffs' Brief in Support of

Plaintiffs' Motion for Class Certification, page 5. Therefore, P&P sent the

Settlement Letter to her subsequent to her filing an Answer.

SETTLEMENT LETTER SENT BEFORE OR SAME DAY ANSWER FILED


putative class members' filed their Answer with the Court in their respective collection actions

after or on the same day that P&P sent the allegedly offending "Settlement Letter". Note: 10 of

14 were sent after and the remaining 4 of 14 were sent the same day.

SETTLEMENT LETTER SENT AFTER ANSWER FILED


putative class members' filed their answer and were subsequently sent the allegedly offending

"Settlement Letter."

NO ANSWER FILED


putative class members' answers were never filed with the Court. Specifically,S of those 10

files indicate that an Answer was never filed with the Court. For the remaining 5 of those 10

files, the debtors filed motions to vacate default judgments which had their Answer annexed

thereto, however, said motion was denied.

7. Based upon the information summarized herein, only 20 of 49 putative class members'

2


files I reviewed fit the proposed class definition that they were sent a Settlement Letter

subsequent to filing an answer.

SETTLEMENT STATISTICS

8. Of the 49 files that I reviewed, I was able to confirm that 0 of 49 putative class members

actually settled their collection action by accepting a payment option offered in the Settlement

Letter during the time period when the Settlement Letter was valid.


members settled their collection action during the time period when the Settlement Letter was

valid, however, the settlement was not pursuant to the terms of the Settlement Letter.


members (a different 1 than that referred to in paragraph 9) settled their collection action 1 day

after the Settlement Letter expired pursuant to a payment option offered in the Settlement Letter,

(i.e., a down payment plus payments on balance). This file indicates that P&P honored the

Settlement Letter offer after it expired.

11. Of the 49 files that I reviewed, 12 of the 49 putative class members' files show that they

received a substantially similar letter to the "Settlement Letter" containing the allegedly

offending language which was sent post-judgment.

I certify under penalty of perjury that the foregoing is true and correct.

Dated: February 25,2013

3

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